State of Utah v. Black

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Keith Roy Black,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010907-CA

F I L E D
October 10, 2002 2002 UT App 330 -----

Third District, Salt Lake Department
The Honorable Paul G. Maughan

Attorneys:
John R. Bucher, Salt Lake City, for Appellant
Mark L. Shurtleff and J. Frederic Voros Jr., Salt Lake City, for Appellee -----

Before Judges Billings, Greenwood, and Orme.
GREENWOOD, Judge:

Keith Roy Black (Defendant) appeals from his conviction for Criminal Nonsupport, a third degree felony, in violation of Utah Code Ann. § 76-7-201 (1999). We affirm.

Defendant first argues that the trial court erred by imposing the burden of proving the affirmative defense of inability to provide support on Defendant. When raising an affirmative defense, "a defendant may have to assume the burden of producing some evidence [of an affirmative defense] if there is no evidence in the prosecution's case that would provide some kind of evidentiary foundation for [an affirmative defense claim]." State v. Knoll, 712 P.2d 211, 215 (Utah 1985). Defendant argues that he sufficiently raised his affirmative defense of inability to pay child support due to his medical condition.

Even assuming that Defendant presented sufficient evidence of his affirmative defense "'to create . . . a reasonable doubt of his culpability,'" id. (citation omitted), the State successfully met its "burden to disprove the existence of [Defendant's] affirmative defense[] beyond a reasonable doubt. . ." State v. Wood, 648 P.2d 71, 82 n.7 (Utah 1982). Each of the three witnesses the State called to rebut Defendant's affirmative defense presented sufficient testimony from which the trial court could determine that Defendant's medical condition did not render him "unable to provide support," see Utah Code Ann. § 76-7-201(5)(a), as required by the statute.

Next, Defendant argues that the Second Amended Information was defective because it alleged that Defendant failed to pay child support for 18 individual months out of a 23-month time period, instead of a 24-month time period. Defendant's argument is without merit. The statute only requires that the State prove that Defendant failed to provide support for his daughter in "18 individual months within any 24-month period." Id. at § 76-7-201 (3)(c). The critical part of the statute is the failure to pay child support for 18 individual months. The 24-month period appears in the statute as a limit on the State from going beyond a single 24-month period to find 18 individual months to support a charge of criminal nonsupport. The fact that the State was able to prove 18 individual months of nonpayment in a shorter time period does not prejudice Defendant.(1)

In sum, because the State disproved Defendant's affirmative defense of inability to pay child support due to his medical conditions beyond a reasonable doubt, and because the State's ability to prove Defendant failed to pay child support for 18 individual months within a 23-month time period did not prejudice Defendant, we affirm Defendant's conviction.
 
 

______________________________
Pamela T. Greenwood, Judge -----

WE CONCUR:
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
Gregory K. Orme, Judge

1. Defendant also presented a third argument that was so inadequately briefed the issue was incoherent. Therefore, we do not address it. See State v. Parra, 972 P.2d 924, 926 (Utah Ct. App. 1998) ("It is well established that a reviewing court will not address arguments that are not adequately briefed.").